Martin v. Delaplaine

5 Del. 329

• Court: Supreme Court of Delaware
• Decided: June 15, 1851
• Status: Published

Opinion

On principle, therefore, it is fully settled in England, that on a note made payable at a certain place, demand must be made at that place to charge even the maker. As to him, I agree the demand need not be made on the day of payment; a demand on any subsequent day, at the place, will be sufficient. I admit that the weight of authority on the decisions in this country, is against me. But these are not uniform. They are not binding on us; and they are against principle. 1. Not uniform. (17 Johns. Rep., 274, Vanness’ opinion ; Story Prom. Notes, 276, n. 1.) 2. Not binding; and if wrong, not to be followed. 3. Against principle. The contract is to pay money at or after the time fixed, provided payment is demanded at the place agreed on. There is no right of action, until such a demand is made; the money is not due otherwise.

If A. gives a note payable in California, on what principle is he bound to have his money here, at the day of payment; and if he is liable without a demand there, he is bound to have the money every where to meet suits. The very damage arising from exchange shows that it cannot be just to hold the maker liable, otherwise than on his contract.

“ Judgment.—And now, to wit: this fourth day of June, 1852, after due consideration, it is the opinion of this court, that in an action by the holder, against the maker of a promissory note, or the acceptor of a bill of exchange, made payable at a particular time andjplace mentioned in the body of the note or bill, it is not incumbent on the plaintiff to enable him to maintain such action, to aver in the declaration or prove on the trial, that a demand of payment was made at the time or place specified in the note or bill; but that if the maker or acceptor was at the place, at the time designated, and was ready and offered to pay the money, it is matter of defence to be pleaded and proved on his part.”